Christian Rajendran v. The State of Maharashtra

12. On merit, it is the submission of the learned counsel for the appellants that the Trial Court has failed to take into consideration evidence and more particularly cross-examination of the victim, which according to him, clearly indicate that there is no substance in the allegations made against the accused persons with regard to them abusing, beating, assaulting or sexually abusing the victims in any manner whatsoever. He further argued that in fact if all boys and girls who were in the orphanage were taken into custody, there remains no reason for nonexamination of one girl and the boys medically. It is also argued that if as per the statements of the victim girls, some of the incidents have occurred in presence of boys, their statements ought to have been recorded by the prosecution in order to bring home guilt of the accused persons. Nonexamination of these material witnesses, according to him, seriously affects the case of the prosecution. He drew attention of the Court to the cross-examination of the victims which shows that the victims were very happy to be in the orphanage and that they had no grievance at any point of time against the accused or any other person in the orphanage. To support this submission, he drew attention of the Court to the admissions given by the victim girls in respect of various occasions, such as girls and boys being taken out in the malls for movies, in restaurants etc. and also all of them enjoying various festivals. He further drew attention of the Court to the evidence on record in the form of the medical register recovered by the police during the investigation and also the admissions of the victim girls which indicate about the boys and girls being medically examined by the doctors visiting the orphanage at regular intervals. It is his submission that in case the victims were sexually abused or any atrocities were caused upon them, in natural course of clinical examination of the victims, the doctor could have known about the same. It is his further submission that all the girls were not orphans and some of them had both parents or either one of the parent. It is further argued that these persons used to visit the orphanage intermittently and hence, in case of the girls being abused sexually by the accused, they ought to have disclosed the same to their parents. According to him, there is evidence on record to show that some of the victim girls had written essays indicating that they are extremely happy and had no grievance against the accused persons at any point of time. It is his submission that having regard to the time lapsed between Tulpule taking custody of the girls and recording of their statements, the possibility of tutoring them is not ruled out. He took serious exception to the opinion of the Medical Officer, who in respect of all girls has opined that the possibility of sexual assault cannot be ruled out. According to him, neither the victim girl has complained regarding anything nor does the medial evidence reflect any sexual assault. It is his contention that such quality of evidence and its nature is not sufficient to prove the guilt against the accused persons. He took this Court through the testimony of all witnesses recorded before the Trial Court and contended that there are material discrepancies and inconsistencies in their testimonies, more particularly the testimonies of the victims and as such, their evidence is not reliable for the purpose of conviction of the accused. To support his submissions, he placed reliance on the judgment of the Hon’ble Supreme Court in case of Nirmal Prem Kumar and anr. Versus State represent by Inspector of Police, Criminal Appeal No.1098 of 2024.

13. Learned counsel for the victims vehemently opposed the appeals. It is his contention that the prosecution has proved that the victims were minor at the time of occurrence of the incident in question. In this regard, he drew attention of the Court to the evidence of victims as well as the evidence of Headmasters of the schools where the victims were studying. It is his contention that the defense has not taken exception to the fact that the victims were minor at the relevant time. According to him, the position of law is settled to say that if the victims’ testimonies are believable and free from doubt, conviction can be recorded solely on the said basis without seeking any corroboration thereto. He argued that there is no substance in the contention of counsel for the appellants that the victims had not complained about the said incidents as they had no complaint in that regard and now at the instance of Manisha Tulpule, the allegations are sought to be made. It is his submission that since the girls were required to stay in orphanage, it was not possible for them to complain about it to anyone. He further argued that the delay caused in lodging of the report or any lapses in the procedure under the Act, cannot be used for the benefit of the accused. It is his submission that the procedure laid down for the purpose of recording the statement of a witness is meant to protect the interests of the victim, and not the interests of the accused. It is his submission that even if this Court finds any procedural irregularity, that alone would not be sufficient to acquit the accused as it would not affect the validity of trial. He drew attention of the Court to the testimonies of victim, which according to him are unblemished and further supported by medical evidence. It is his submission that there is no case sought to be made out by the defense as to what would be the reason for the victim girls to falsely implicate accused in this crime. Insofar as the allegations of the defense about the acts of Manisha Tulpule, it is his submission that during even the cross-examination of this witness, no reason is brought on record to indicate any motive, enmity etc for her to initiate false proceedings against the accused. He placed reliance on provisions of Section 29 and 30 of the Act to contend that the presumption of commission of the crime and offenses under the Act are not being rebutted by the defense. Finally it is his submission that having regard to the serious nature of crime and in view of prosecution being able to prove the guilt of the accused beyond reasonable doubt, these appeals do not deserve acceptance.

14. Learned APP supported the contentions of the counsel for respondent No.2 and also independently sought confirmation of impugned judgment and order of conviction. It is his submission that the evidence of the victim girls, more particularly those who have categorically deposed in their substantial evidence before the Trial Court with regard to the acts of sexual assault being caused upon them is duly supported by the medical evidence on record. It is his submission that in view of Section 29 of the Act, the burden has shifted upon the accused to show contrary, which they have failed to do. In this regard, it is further argued that though the defense witnesses were examined, the said witnesses are not sufficient to dislodge the case of the prosecution. He further argued that the evidence of the victim girls indicate that accused Nos.[1] and 2, apart from sexually abusing them, have shown them pornographic videos, which were recovered during the investigation. It is his submission that even other victim girls were assaulted and as such, the conviction recorded against them on all counts deserves no interference. Insofar as accused No.3 is concerned, it is argued by referring to Section 19 of the Act, that once the victim girls had pointed out to the said accused about the acts of sexual assault being committed upon them, the law mandated the accused No.3 to inform about it to the police, which she has failed to do and therefore, the offence in question has been committed.

15. At the outset, it needs to be recorded that the burden to prove the charges against the accused solely rests upon the prosecution and the requirement to prove guilt beyond doubt is not dispensed with, even for offences under POCSO Act. However, unlike the offences under the Indian Penal Code, 1860, in view of Section 29 of the Act, once the prosecution proves the fundamental facts, which led to hold that the offenses alleged against the accused are established, the burden would then shift upon the accused to show otherwise in order to rebut the presumption provided under Section 29 of the Act. Similarly, the position of law with regard to the acceptance of the version of the victim even without seeking any corroboration thereto is settled to say that if the version of the victim is consistent and wholly reliable, the Court need not seek any corroboration thereto. In this regard, reference can be made to the judgment in the case of Nirmal (supra). The Hon’ble Apex Court in the said judgment has dealt the issue, with regard to the weight to be attached to the testimonies of the victim in matters involving sexual offences. It would be useful to reproduce relevant observations made by the Supreme Court therein:

14. In Krishan Kumar Malik v. State of Haryana[6], this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae. It was held thus:

15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” Keeping in mind the aforesaid guidelines issued by the Hon’ble Supreme Court and the observations made in the judgments referred therein, it would be necessary to examine the evidence which was led before the Trial Court.

16. At the first instance, this Court would like to deal with the arguments advanced by the learned counsel for the appellants/accused that the procedure laid down under the POCSO Act for the purpose of recording of the statements of the victims so also for their medical examination has not been complied with. It would be necessary to take note of Section 24 of the Act, which reads thus:

17. It is needless to say that the procedure laid down under the Act is to ensure that the victims are not subjected to any harassment during the course of the investigation and also that the investigation is being done in an appropriate manner. The intent of the legislature to lay down the said procedure is to ensure that the victim girls are comfortable in case their medical examination is done in presence of a member of the family and in their absence, an appointed person. Now question arises as to whether the accused can seek benefit of any procedural irregularity committed during the course of investigation. A candid answer thereto, must be recorded in negative. The reason for the same is that only the procedural illegalities which go to the root of the investigation would affect the trial in appropriate case. It is the settled position of law that irregularities committed during the course of the investigation, if they are not fatal to the case of the prosecution, would not affect the outcome of the trial. In no circumstances, it can be said that such procedural lapses committed by the investigating agency would come to the aid of the accused seeking acquittal. The accused has to show the prejudice caused to him by non-compliance of the procedure and in such circumstances only, the contention of the accused in that regard would be considered. Here in this case, the victim girls were residing in an orphanage. They were examined by the Medical Officer attached to Sub- District Civil Hospital. During the cross-examination of the Medical Officer or during the cross-examination of the victims themselves, it was never suggested that no medical examination of these girls was undertaken by a qualified medical officer to do so. The Medical Officer is a female and attached to the Government Hospital and as such, the basic requirement for the purpose of medical examination of the girls is complied with.

18. Similarly, it is sought to be argued on behalf of the appellant/accused that after the girls were taken in custody, no report was lodged immediately and the report has been lodged in this regard after lapse of some time. In this regard, however, the evidence of Witness No.1-who has lodged the report on behalf of the State indicates that on account of procedural compliances, time was taken for the purpose of lodging a formal report. A bare perusal of relevant evidence on record, does not indicate that there was any deliberate or intentional delay on the part of the State Machinery to set the law in motion. In any case, crossexamination of Manisha Tulpule does not bring on record as to what interest she had in making any allegations against the accused persons. In absence of any cross-examination and for want of any ulterior motive on her part, it is not possible for this Court to accept the contention of learned counsel for the appellant that there was any deliberate delay and which would go to the root of the case and which would require this Court to take any action against the concerned.

19. Prosecution essentially placed reliance on the substantial evidence of the victim led before the Trial Court. It is sought to be contended on behalf of the appellants that out of 11 girls, only 10 girls were medically examined and all of them were not brought before the Trial Court. It is further contended that the boys who were also present at the spot were not examined and the other witnesses who were working in the establishment of the orphanage were withheld without any justified reason. It is necessary to take note of the position of law that the examination of a particular number of witnesses to prove any fact is not necessary. It is the quality of evidence that would matter rather than the quantity. Even otherwise, in cases where the testimony or the evidence of the victim is found reliable or free from doubt, it is open for the Court to base the conviction of the accused on the basis of sole evidence without seeking any corroboration. Herein this case, though it is a fact that immediately after the disclosure of the offenses against the accused persons, no report came to be lodged, however, it is pertinent to note that the evidence led by the prosecution is self-explanatory. According to the evidence of Manisha Tulpule, she had no personal knowledge about harassment or sexual assault caused on the victim girls by the accused, which came to her notice after it was informed by the teacher of some of the victims. After the girls were taken in custody, it was necessary to examine them medically. Having regard to the number of victims, there is justification for conducting their medical examination from 6th May to 13th May

2015. It is on the basis of the report of the medical officer, report came to be lodged on behalf of the State by the police personnel i.e. PW-1. In the peculiar facts and circumstances of the case, it cannot be said that either Manisha Tulpule or the State Machinery has deliberately not complied with the provisions of the POCSO Act or any prejudice has been caused to the appellants in that regard. It is necessary to take note of the fact that no mala fides are attributed even towards Manisha Tulpule for initiating the action or any mala fide intention or falsity alleged against the victim themselves. Similarly, non-examination of all the victims or even the boys who were residing along with the victims in the orphanage does not affect materially the case of the prosecution.

20. For the purpose of better understanding of the evidence recorded qua each accused, the evidence of the victims is reproduced in nutshell in a tabular form. Salomi PW5-K A[1] used to tell her to visit his room and if she refused to obey, he would threaten to beat her. Thereafter, he used to commit sexual assault and penetrative sexual assault upon her. She states this alleged act was done frequently (every day) by A[1]. All this was going on until the year 2015. She also states that PW11-M told her A[2] committed rape on her. She however does not claim any act committed by this accused to her. NIL PW[6] SAB She states that A[1] have committed sexual assault and penetrative sexual assault on her person, and when she refused, A A[2] threatened to beat her. She also states that A[1] would show her pornographic videos on Television by attaching a She also states that she has seen PW11-M and A[2] in a room latched from inside, and when she inquired, PW11-M told her she was sexually assaulted by A[2]. She states that She informed A[3] about the alleged acts done by A[1], but A[3] told them to wait for some time and she was going to sent us back to our home. pen drive. She stated that A[1] sexually assaulted her for 4 years before 2015. PW[7] P She states that A[1] committed sexual assault on her person between 2014 – 2015 and would beat her out of revenge because she refused to do the acts as told by A[1]) Nil She states that A[3] knew about the alleged acts done by A[1], but A[3] ignored them. PW8-M She states that she was sexually assaulted by A[1] knew about the alleged acts done by A[1], but did not report the same. PW9-S She states that she was sexually assaulted and beaten by A[1]. knew about the alleged acts done by A[1], but did not report the same. PW10-N She alleges that A[1] showed her pornographic videos on his cell phone. Nil Nil PW11-M She states that she has seen A[1] beating PW6- SAB. She states that on several occasions, A[2] has committed sexual assault and penetrative sexual assault on her and when she refused, A[2] threatened to beat her. She states that she has seen A[2] beating PW6- SAB. Nil PW13-A Nil She states that only once, A[2] had committed sexual assault and penetrative sexual assault on her, and this has resulted in her experiencing painful episode. Nil

21. The evidence of Dr.Naik, PW-12 (Exhibit-110) indicates that the victims gave history to the medical officer and the findings as to the clinical examination of the victims. For convenience, relevant observation are reproduced herein below: Victims Examined Opinion of Dr.Naik, PW-12 PW5-K Patient gives details of alleged history of sexual assault twice On general examination vitals appear to be normal. On genital examination, no external injury marks were seen. Secondary characters were developed, normal and healthy.No injuries were found on vaginal introitus. Hymen was not intact (ruptured). Urethral and anus normal. No bleeding. No injury marks were noticed.

PW-SAB Patient gives details of alleged history of penetrative sexual assault around 4 to 5 times since November 2014 and last assault on 22nd March 2015. She had also mentioned alleged history of physical assault on 23rd and 24th April 2015 with blunt object (belt). On genital examination, no injury marks were seen. Secondary characters were developed, normal and healthy. No injuries were found on vaginal introitus. Hymen was not intact. Urethral and anus normal. No bleeding or any injury marks were noticed. PW7-P Patient had given an alleged history of external handling of private parts. On genital examination, no injury marks were seen. Secondary characters were developed, normal and healthy. No injuries were found on the vaginal introitus. Hymen was intact. No injury marks were noticed. PW-8 -M Patient has given history of headache (on & off type) for 1 year and blurred distant vision. Patient has alleged history of physical assault 1 month back with hard and blunt object, but no external injury is seen. She had also given alleged history of Accused forcing to put fingers in Anal region 1 month back. On general examination, her vitals were normal. Secondary characters were developed, normal and healthy. No injuries were found on vaginal introitus. Hymen was intact. Urethral and anus normal. No bleeding. No injury marks were noticed. PW-9-S Patient had given an alleged history of intermittent physical assault in form of slapping. She menstruated for 4-5 days. Secondary characters were developed, normal and healthy. No injuries were found on vaginal introitus. Hymen was intact. Urethral and anus normal. No bleeding. No injury marks were noticed. PW-10-N Patient had given an alleged history of physical assault in form of slapping on some mistakes committed by her. Hymen was intact. PW-11-M Patient has mentioned that she had no complaint. But she confirmed only about the history of physical assault on genital examination, no external injury marks were seen. PW13-A Patient has mentioned that she had no complaint. on genital examination, no external injury marks were seen. Secondary characters were not developed. No bleeding. No injury marks were noticed. Witness A examined before the Trial Court Patient has mentioned that she had no complaint. She had not given any alleged history of penetrative sexual assault, but intermittent history of physical assault (slapping). Secondary characters were poorly developed. Hymen was intact. Urethral and anus normal. No bleeding. No injury marks were noticed. Witness MR examined before the Trial Court Patient mentioned that she had no complaint. She had not given any alleged history of penetrative sexual assault. confirmation only about history of physical assault. Secondary characters were poorly developed. Hymen was intact. Urethral and anus normal. No bleeding. No injury marks were noticed. Witness S examined before the Trial Court Patient mentioned she had no complaint. She had not given any alleged history of penetrative sexual assault. Confirmation only about history of physical assault. On general examinations, her vitals are normal. Secondary characters were poorly developed. No bleeding. No injury marks were noticed. It is opined by PW12 that after going through chemical analysis report of all the above victims, sexual intercourse/assault cannot be ruled out.

22. From the evidence on record, it is clear that PW5-K, PW6-SAB, PW7-A, PW8-M, PW9-S and PW10- deposed against accused No.1- Christian. PW5-K deposed before the Trial Court that there were eleven girls and seven boys in the orphanage. She further claimed that the boys were staying on the ground floor along with accused No.2-Joy and the girls used to reside on the first floor. Accused No.1-Christian was residing on the second floor in a guest room. According to her, accused No.3uncle-John and the persons who were working in the orphanage were also staying there. Insofar as accused No.1-Christian is concerned, she specifically states about he used to call her in his room and whenever she would not listen to him, she was threatened to be beaten. After she used to enter the room of accused No.1-Christian, he used to remove her clothes and commit forcible sexual intercourse with her. She claims that such act was done with her frequently by Christian. She also claimed that she had disclosed the said fact with other girls who also shared their experience with her with regard to accused No.1. She then refers to disclosure by one of the girls to the school teacher, who in turn, disclosed the said fact to the principal and that is how Manisha Tulpule came into picture. She further states about Manisha Tulpule coming to the orphanage and taking the girls and boys along with her. She also claims that she was referred to the hospital where her medical examination was conducted. During the cross-examination, it was suggested that she did not go through the contents of statement recorded under Section 164 of the Cr.P.C. She, however, accepts the fact that in order to give the statement, she was taken to the Court of JMFC. She denied that in the previous statement of hers, she did not state the incident occurred with her. It was suggested to this witness that she was finding orphanage as her home and was liking to stay there as reflected in the writings. She accepted the writings to be her own and to be correct. She also accepted the fact that girls and boys used to be taken for watching movies and to restaurants and that festivals were also celebrated in the orphanage. She accepted that a school teacher had complained against her that she had stolen money from the school from the bag of classmate. Suggestion is also made to the effect that she used to commit theft in the orphanage too. She denied the suggestion made by the defense that she and S had tutored M and A to speak against accused No.2-Joy.

23. Evidence of PW6-SAB indicates about the arrangement of residence of the boys, girls, accused persons and others in the orphanage. The said evidence is in tune with the evidence of PW5-K. With regard to the allegations against accused No.1 of him committing sexual assault on her. She gives details as to the manner in which the acts were done by accused No.1. She candidly states about she being shown porn video films and calling upon her to commit the act accordingly. She also claims that on one occasion, she as well as victim Z were simultaneously subjected to sexual intercourse by accused No.1- Christian. She further claims that she and Z had told about the same to accused No.3 who told them to wait for some time as that she was going to send them back to their homes but she did not take any action. She further states about the manner in which Manisha Tulpule came to know about the harassment/sexual assault being caused by the accused persons on the victims and also deposes about the medical examination being conducted.

24. During her cross-examination, it is brought on record that Manisha Tulpule had been to one function, wherein Shanti Ashram was given a certificate to be a good ashram. She admits that visitors register is maintained and visitors used to visit the ashram. She also accepts about she and other children being taken out for movies, at restaurants etc. and that the birthdays of the children were celebrated. It was suggested to this witness that victim Z had an affair with Bhagat and for this reason, accused No.1 had scolded her. Witness, however, shows her ignorance about any affair, however, it is accepted that accused No.1 had scolded victim Z and removed Bhagat from work. It was also suggested to her in the cross-examination that accused No.1 had wanted her to become an air force officer and that the children used to be upset and irritated against Christian as he had strict attitude. She also accepted that she did not like Christian’s interference in her life. She also admits that she accepted before Christian that she had an affair with Vicky. She, however, denied having any sexual relationship with the said Vicky.

25. There is evidence on record in the form of oral testimony of Dr. Naik coupled with the medical papers indicating that Dr.Naik had clinically examined the victim girls including PW5-K and PW6-SAB. Dr. Naik has deposed about both these victims giving history of penetrative sexual intercourse having being committed by accused No.1. In the clinical examination, it was found that the hymen of these two witnesses was ruptured. Medical Officer, on the basis of clinical examination and FSL report has opined that the possibility of sexual assault on these two witnesses is not ruled out. Perusal of the oral evidence of the victims coupled with the medical evidence, indicates that they were subjected to sexual intercourse by accused No.1. Though during the crossexamination, the defense has sought to bring it on record that these witnesses have never complained of any such incident to number of independent persons who used to be in contact with them such as the tuition teachers, visitors, medical officers, doctors etc., however, it is pertinent to note that even if it is accepted that all children are not orphans, but as a matter of fact, they are kept in an orphanage which indicates the need of these girls and boys to stay there and their dependency upon the accused persons and their family. It would be, therefore, practically impossible for these boys and girls to complain against any harassment physical or sexual caused by accused to any independent person.

26. In the cross-examination, when it was asked to PW6-SAB as to any complaint being made to the visitors, she answered that when the visitors would come, uncle i.e. father of accused Nos.[1] and 2 and accused persons would all be with them and as such, the children had no opportunity to make complaint to the visitors. Similarly, from the crossexamination of other witnesses, it is sought to be brought on record that periodically there used to be medical examination of girls and boys by the medical officers/doctors from Rotary Club. Medical register is also maintained in this regard. Firstly, though it is brought on record that there used to occur medical examination, however, there is nothing on record to indicate as to the nature of medical examination whether general or for treatment of any disease etc. Most importantly, there is no evidence to hold that medical examination was conducted in absence of accused. Needless to say that when the accused persons are present before the doctors visiting the orphanage, it would have been impossible for the girls to complain about the same to the doctors.

27. Similarly, though the girls have accepted even of writing essays indicating that they used to like to stay in the orphanage or that they were taken for movies, restaurant or their birthdays being celebrated, that itself will not be sufficient to accept that there was no incident of sexual assault being caused on any of the girls. More particularly, when the girls were dependent for food, clothing and shelter on the orphanage, which was run by the accused persons, merely the fact that no complaint was made earlier is not sufficient to discard their testimony. It is only after the girls were taken away from the orphanage and were settled at another place, they could complain about the sexual assault and other acts having been done by the accused persons.

28. In order to hold that the victim girls are deposing falsely more particularly against accused No.1 Christian, there has to be concrete reason for them to do so. The defense has not been able to bring any motive on the part of the victim girls to falsely implicate accused No.1 in this crime. Few incidents are sought to be brought on record through the cross-examination of the victims and it was sought to be suggested that accused No.1 was strict with them and, therefore, this could become a reason for false implication of his in this crime. Most importantly, that testimonies of the victims PW[5] and PW[6] get corroborated by the medical evidence on record. Medical evidence is sufficient to show that they were subjected to penetrative sexual assault. In view of Section 29 of the Act, there is presumption of commission of offence, once core facts are proved by prosecution and in that case, burden would be on accused to rebut the said presumption. Neither by cross-examination nor by leading evidence of defense witnesses, the presumption is rebutted by accused No.1.

29. There is further corroboration to the version of PW[6] with regard to she being shown pornographic videos by accused No.1. Exhibit-60/C i.e. examination of report of the laptop of the accused which is seized at the instance of accused No.1 shows that there were 8 pornographic video files found in the memory card. In case of a false implication of accused No.1 there would not have been any corroborative evidence in order to support the contention of witness No.6 who candidly stated about she being shown pornographic videos by accused No.1. Unless it was shown to her, she would not have known that accused No.1 in his laptop has any such video. This evidence, therefore, conclusively proves the guilt of accused No.1 of he having sexual intercourse with witness No.5-K and witness No.6-SAB.

30. Victim P – PW[7] has stated about the sexual assault which is non-penetrative in nature which is committed by accused No.1 -Christian. Her previous statement before the medical officer is consistent. In such circumstances, this Court finds no reason to disbelieve her testimony in this regard. However, insofar as the evidence of victim S – PW[9], Victim N – PW10, their previous statements does not support their contention and substantive evidence before the Trial Court. This Court, therefore, is unable to accept their testimonies in order to prove the acts of sexual assault being caused upon them by accused No.1. The maxim of “falsus in uno, falsus in omnibus” has no application in India. The evidence of a witness cannot be discarded in totality, if some part thereof is not acceptable. Thus, the evidence of the witnesses whose statements are not found consistent in respect of a particular accused cannot be completely ignored.

31. As far as accused No.2 is concerned, except for victim M - PW11 and victim A -PW13, no other witness has claimed any act being done by this accused against them. PW5-K has accepted that accused No.2 did not do anything to her but she claims to have been informed about such acts being done with another victim. This victim, however, has not been examined before the Trial Court and, hence, the hearsay evidence of PW[5] to that extent is not sufficient to prove the said allegations against accused No.2. It needs to be reminded that even under the POCSO cases, the burden on the prosecution to prove the charge against the accused beyond shadow of reasonable doubt is not dispensed with and principles governing appreciation of evidence would apply even to the case in hand with its complete rigor. As observed herein above, the Hon’ble Apex Court also expects the Courts to find corroboration, in case, the evidence of victim is not wholly worthy of trust. In this regard, the testimonies of PW11 and PW-13 before the Trial Court though indicate the acts committed by accused No.2-Joy against them, however, their previous statements are inconsistent with the said testimonies. Evidence of Dr.Naik clearly shows that these two witnesses never disclosed any act being committed by any of the accused to them. In fact, no complaint was made and obviously there is no evidence at all indicating any sexual assault being caused upon them. These witnesses are younger to PW[5] and PW[6] and hence possibility of they being influenced by version of PW[5] and PW[6], who are elder to them cannot be ruled out. It is also necessary to note that PW[6] to PW[9], have deposed about, they informing accused No.3-Salomi about acts done by accused No.1. They do not make reference about any complaint against accused No.2 being made to her. This Court, therefore, has no hesitation to hold that the charges levelled against accused No.2-Joy are not proved beyond shadow of reasonable doubt.

32. Insofar as the charge against accused No.3 Salomi is concerned, according to the prosecution, victim girls complained to her about the acts of sexual assault being caused on them by accused Nos.[1] and 2 but she failed to report the said offence to the police. This accused, therefore, is said to have committed offence under Section 19 of the Act punishable under Section 21 thereof.

33. The testimonies of PW[6] to PW[9] indicate about them disclosing to her the acts done by accused No.1 to the girls, which apparently are offences under the Act. However, instead of reporting the same to the police, she simply told them that the girls would be sent back to their homes after some time. In the cross-examination, nothing could be elicited on behalf of this accused to discard the said evidence of disclosure of the fact by these victims to accused No.3. According to Section 21 of the Act, any person who fails to report the commission of an offence under Sub-section (1) of Section 19 read with Section 21 of the POCSO Act is liable to be punished with imprisonment for the description which may extend to six months or with fine or with both.

34. The evidence on record demonstrates about the said disclosure of the acts done by accused Nos.[1] to accused No.3. Admittedly, there is non-reporting of the said offence to the police, hence, the conviction recorded against accused Nos.[3] for the offence under Section 19 read with 21 of the POCSO Act does not deserve interference. Accused No.3 was member of the family who were running the said orphanage and, therefore, it could be said that she was in charge of the institution where the offence has been committed. Now question arises as to the term of sentence to be handed over to this accused. The learned Trial Judge punished accused No.3 by sentencing her to suffer Rigorous Imprisonment for one year i.e. maximum punishment provided under the Act.

35. Accused No.3 is a lady. She is now aged over 50 years. She has no criminal history behind her. She was in jail for the period from 12th June 2015 to 21st August 2015. In the facts of the case, sentence already undergone would be sufficient to meet ends of justice.

36. In view of above, the following order: O R D E R

1. Criminal Appeal No.261 of 2021 stands partly allowed.

2. The judgment of conviction recorded against accused No.1- Christian Rajendran and sentence imposed on him, is maintained.

3. Accused No.2-Joy Rajendran stands acquitted from all charges. He be set free forthwith, if not required in any other crime.

4. Criminal Appeal No.256 of 2021 stands partly allowed. Though the conviction of accused No.3 is maintained, she is sentenced to suffer imprisonment for the period, she was in jail i.e. from 12th June 2015 to 21st August 2015.

37. In view of disposal of the appeal, Interim Application No.1914 of 2023 will not survive for consideration and the same stands disposed of. (R. M. JOSHI, J.)